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Lovell v. State11/12/1997
n he murdered Tfc. Plank. Additionally, submits Lovell, there was not sufficient evidence that he was "about to be arrested, there being no evidence that the officers had probable cause to arrest appellant." Brief of Appellant at 32. Lovell, however, implicitly recognizes that Tfc. Plank was at least attempting to "detain" him, in the Fourth Amendment sense of detention, but Lovell submits that "detention" in § 413(d)(3) has the same meaning as being "legally detained" has in the escape statute, Article 27, § 139. The latter statute provides, in pertinent part:
"(a)(1) If any individual who is legally detained in the State penitentiary or a jail, house of correction, reformatory, station house, or other place of confinement in this State or who is committed to the Alcohol and Drug Abuse Administration for examination or inpatient treatment escapes, the individual is guilty of a felony ...."
In order to decide the issue before us, it is unnecessary to articulate the full reach of § 413(d)(3). It is sufficient to rule that the section is not as narrow as Lovell contends. We pointed out in Calhoun v. State, 297 Md. 563, 468 A.2d 45 (1983), cert. denied sub nom. Tichnell v. Maryland, 466 U.S. 993, 104 S. Ct. 2374, 80 L. Ed. 2d 846 (1984), that, under § 413(d)(3), the victim of the murder need not be a police officer. Id. at 591, 468 A.2d at 57. The victim of the murder committed in furtherance of the objectives enumerated in § 413(d)(3) could be a civilian. Id. Further, the § 413(d)(3) aggravating factor was applied in Calhoun where a police officer was killed by a gunshot wound to the head when, in response to an alarm, he entered a retail store office while an armed robbery was in progress. Id. at 572-73, 468 A.2d at 48-49. The facts in Calhoun belie the notion that the detention embraced by § 413(d)(3) must be a custody of the person of the murderer that is effected before the murder.
Clearly, the scope of subsection (d)(3) exceeds a murder committed "at a time when [the defendant] was confined in any correctional institution," because that is an aggravating circumstance under subsection (d)(2). It is also clear from the text of § 413(d)(3) that it embraces pre-arrest detentions. The section presents three levels of restraint in descending degrees of duration--"lawful custody, arrest, or detention." The statute applies when any of those degrees of restraint has been accomplished and the murder is "in furtherance of an escape or an attempt to escape" from any of those degrees of restraint. In addition, the statute applies when the murder is "in furtherance of ... an attempt to... evade... lawful custody, arrest, or detention ... by a law enforcement officer." (Emphasis added). In the instant matter Tfc. Plank had probable cause to arrest Lovell, as we explain below, but that is not the critical inquiry. The critical inquiry is the purpose underlying the defendant's commission of the murder. Consequently, the jury need not find beyond a reasonable doubt that Tfc. Plank had formed the intent to place Lovell under arrest. The evidence was sufficient for the jury to find beyond a reasonable doubt that, from Lovell's point of view, he committed the murder "in furtherance of ... an attempt to ... evade ... lawful ... detention ... by a law enforcement officer."
Maryland Code (1977, 1992 Repl. Vol.), § 26-202(a) of the Transportation Article authorizes
" police officer arrest without a warrant a person for a violation of the Maryland Vehicle Law ... if:
....
"(2) The person has committed or is committing the violation within the view or presence of the officer, and ....
"(i) The person does not furnish satisfactory evi
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